Scottish Court of Session Decisions

Lord President—The question is one entirely in the discretion of the Court; and the exercise of that discretion involves many delicate considerations. On the whole matter, I am of opinion that the children ought not to be transferred from Mrs Ferrier to Captain and Miss Brown. Undoubtedly weight is due to the opinion of tutors. But in the present case that is greatly removed by the fact that the tutors are not agreed; that one of the four petitioners has a direct interest in making the application, and that another is in Australia; and I cannot but doubt whether he was fully informed of all the circumstances when he wrote the letter produced. Other two, Messrs Latham & Fraser, may be neutral; but whether they are well acquainted with the comparative merits of Mrs Ferrier and Miss Brown we are not informed. Upon the whole, while weight is due to the opinion of the majority, it is not an opinion to which the Court is bound to defer. It is only one of the circumstances of the case. Nor are we determining the place of education of the children. They are of very tender years. What arrangement may afterwards be necessary we cannot now say. Circumstances may change. The question now is, Where these young children ought to live? I cannot doubt that either Mrs Ferrier or Miss Brown is well qualified to take charge of them. The only question is, What is the best home for them? As to the wishes of the father, I cannot say we have distinct evidence of any preference. He had confidence both in Mrs Ferrier and Miss Brown. The incomes of both parties are very moderate. But it is of great consequence to children born in India that their home should be made as comfortable as possible. Now, it is clear that they are more likely to be so with a single lady living in Rothesay, with an income of £300 a-year, than with a lady and gentleman living in Edinburgh, with a joint income of £228. The health, too, of Captain Brown is uncertain. I think his paralytic stroke ought not to be disregarded. We know that the temper of people suffering from such a malady as his is not very certain. On the whole matter, I do not think the petitioners have made out a case, or that we can grant the prayer of the petition.

Lord Deas— I agree with your Lordship. I see no sufficient ground for removing the children. Both ladies are unobjectionable; but we must make a choice, and I give the preference to the grandmother under present circumstances.

Lord Ardmillan— Tutors are not the custodiers of the children. The grandmother is the natural and becoming custodier. This has been recognised by decisions of the Court, and it is commendable to reason. Some of the strongest and warmest affections have subsisted between a husband and his wife's mother; and Major Brown seems to have been much attached to his wife's side of the house, as is shown by the letters we have seen. To her Major Brown sent his eldest child. Although his mind may not have been quite made up, the correspondence shows that the tendency of his inclination was to place them with Mrs Ferrier. It shows deep affection for her; and I have no doubt that his wish was that they should be under the roof of the lady he loved better than any other, except his wife.

Lord Kinloch— I am of the same opinion. I have no doubt whatever that, if given to Miss Brown, the children would receive every care and attention; but, in the circumstances, I cannot for a moment think of removing them from their present home. I decide on existing circumstances. There is no need to grant any order to give their uncle and aunt access to them. They will, I am sure, get more frequent and more ready access without it.

On the question of expenses, the Court allowed

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